On February 13, 2023, the Drug Enforcement Administration (DEA) responded to an inquiry by a North Carolina attorney regarding the control status under the Controlled Substances Act (CSA) of THC acetate ester (THC-O). The DEA concluded that delta-9 THC-O and delta-8 THC-O fall under the CSA’s definition of tetrahydrocannabinols (THC), which are controlled under Schedule I and therefore illegal. Focusing on their structures, DEA found that delta-9 and delta-8 THC-O “do not occur naturally in the cannabis plant and can only be obtained synthetically, and therefore do not fall under the definition of hemp.” Since the Agricultural Improvement Act of 2018 (Farm Bill) legalized hemp containing not more than 0.3 percent delta-9 THC, there has been significant expansion of the market for cannabinoids derived from hemp. However, many legal questions have been posed regarding such products. Last year, the Ninth Circuit ruled that hemp-derived delta-8 THC products are legal under the plain language of the Farm Bill, and if Congress inadvertently created a loophole in the statute legalizing such products, then “it is for Congress to fix its mistake.” DEA’s letter clarifies that, unlike the hemp-derived delta-8 THC products at issue in that case, delta-8 THC-O is considered synthetically derived THC and controlled under Schedule I. While DEA’s response provided some clarity on the control status of delta-9 and delta-8 THC-O specifically, there have been calls for Congress to address the legality of all hemp-derived cannabinoids.

Read the DEA’s response here.

Read the Ninth Circuit’s opinion here.